Smt.Banubai Tukaram Danawale v. Baba Maruti Nanaware & Ors.

Mr.V.S.Talkute, advocate, for the appellant Mr.R.A.Thorat, advocate, for the respondent Nos.1 to 4 and 8 to 14 CORAM : A.S.OKA, J. DATE : 22ND FEBRUARY, 2008 P.C. . Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. The appellant is the original plaintiff. The appellant filed a suit for the declaration of ownership and perpetual injunction. The trial Court granted a decree in favour of the appellant. In the appeal preferred by the respondent Nos.1 to 5, the Appellate Court has confirmed the decree regarding the declaration of ownership. However, the Appellate Court has set aside the decree of permanent injunction against 2 the respondents/defendants in relation to 1 ana 4 paise share which was purchased from Dhondubai Waman Pawar.

I have heard the submissions of the learned counsel appearing for the appellant. His submission is that the finding of the Appellate Court based on order passed under Section 70(b) of the Bombay Tenancy And Agricultural Lands Act, 1948 is subject to the further orders which may be passed by the authorities under the said Act of the

1948. He further submitted that the evidence of the respondent No.1 discloses that he was not in possession.

I have considered the submissions. Apart from the fact that the appeal stands abated as against respondent No.5 who was one of the appellants in the District Court, the finding of the Appellate Court is based on an order passed under Section 70(b) of the said Act, 1948 in favour of the first defendant (first respondent) holding him to be a tenant of the share of the predecessor 3 in title of the appellant by the name Dhondubai Waman Pawar. The appellant purchased the share of Dhondubai by a registered Sale Deed dated 2nd May,

1984. The said transaction appears to have been made in favour of the plaintiff/appellant by Dhondubai W.Pawar during the pendency of the proceedings under the said Act of 1948. The Appellate Court found that the husband of the appellant acted as a Power of Attorney holder in the said proceedings and therefore, it cannot be said that the appellant was not aware of the tenancy proceedings pending relating to the share of Dhondubai Waman Pawar. That is the reason why the Appellate Court did not accept the case made out by the appellant that she was in possession of 1 ana and 4 paise share which she purchased from the said Dhondubai Pawar.

No fault can be found with the decree of the Appellate Court declining to grant equitable relief of perpetual injunction in favour of the appellant. No substantial question of law arises. The Second Appeal is dismissed. As the Second Appeal is not 4 admitted, the cross objections cannot be entertained and same also stand dismissed.

(A.S.OKA, J.)